Kaczor on Abortion: Why Can't We Kill?

(By Andrew MacKie-Mason)

This is the second post in my critique of Christopher Kaczor's book, The Ethics of Abortion. I've duplicated the introduction text from my first post below.

I'm in the process of reading The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice by Christopher Kaczor (Philosophy, Loyola Marymount). I picked up the book off a recommendation at Mirror of Justice, and so far I've been enjoying the experience.

I'm trying to approach Kaczor's arguments with an open mind. At the same time, it's a dense book, and doing it justice as a critical reader requires responding to problems as they arise. (And, unfortunately, problems seem to be arising often.)

For that reason, I'll be posting my thoughts on the book as I read it, rather than trying to do an overall review when I finish. Before each critique I'll note how far I've currently read in the book, in case there's material beyond that point relevant to what I'm talking about.

Unless otherwise noted, all citations are to Kaczor, Christopher. The Ethics of Abortion. Routledge: New York. 2011.

------- (Review written 8/21/11, currently at page 78) -------

One question that hovers throughout Kaczor's book is, "why can't we kill?" What is it, exactly, that makes killing wrong? Though he doesn't address the question, Kaczor assumes that the answer is found in the right to life. That is, we cannot kill (or attempt to kill) because the victim has a right to life.

I don't think that's right. Or, at least, not entirely right. As I argued in my first post, the "right to life" itself is a questionable moral construct. But even if we have a right to life, the way we criminalize murder in modern America suggests that we find killing wrong for more reasons than simply because it denies the victim the right to life.

In our current legal system, individual rights are generally defended through civil actions, where people bring claims to vindicate their own rights. This is a product of the individualist streak in our history: no one cares more about my rights than me, we think, so I should be the one to defend them in court.

Crimes, on the other hand, are prosecuted by the government. While many states have "victims' bills of rights," no jurisdiction that I'm aware of allows private citizens to compel a prosecutor to bring charges. We recognize that criminal prosecution may be against the public interest, even if the alleged victim wants to press charges, and so we guarantee prosecutorial discretion. The government prosecutes crimes because they are offenses against society, not against an individual. That's why in many jurisdictions, criminal prosecutions are styled "The People v. ___".

Death, of course, is an interesting case. The victim, the harmed party, is no longer there to defend his or her interests. As a detective character on TV put it, "We speak for the dead, because they can't speak for themselves. We owe them that much." But on the other hand, prosecutors are still supposed to think about the public interest. We send murderers to jail not because they violated someone's rights, but because they've committed a crime against the public. We let their families sue for wrongful death because they've violated someone's rights.

Kaczor seems to hold a different belief. He writes:

Even if killing is wrong because it eliminates future experiences that we have a present dispositional desire to preserve, and even if this is the best account of why killing is wrong, the conscious desires account of personhood requires that this be the only reason why killing is wrong. But this is unreasonable. An act is often wrong for a number of reasons at once...There are myriad possible reasons to believe killing is wrong. For instance, killing takes away your present good, the good of life. Killing undermines your bodily well-being. Killing takes away your freedom. If killing is wrong for one of these reasons, or if killing is wrong for any other reason unconnected with my or your (present, dispositional, ideal) desires (e.g., divine command, societal cohesion, rule-utilitarianism, Rawls's maximin principle, contractarianism), then the suggested criterion for establishing the right to life fails...The conscious desires account of personhood requires that killing is wrong only for this reason. In other words, for the conscious desires argument to work, it is also necessary that all other actual and possible accounts of the impermissibility of killing unrelated to desire are mistaken. (62-63, emphasis mine)

The unstated assumption is that killing is wrong only because it violates someone's right to life. That's the necessary connected step between Kaczor's premise (killing is wrong for reasons other than that it undermines desires) to his conclusion (the right to life cannot be founded on the possession of desires).

Even if you don't accept my legal argument above, it should be clear that things can be wrong (morally impermissible) for many reasons other than that they violate someone's rights. It's a strained rights theory that argues that drug use violates rights, but many people think it is impermissible. Someone may consider it morally impermissible to commit sacrilege, even though that sacrilege may not violate anyone's rights. It's wrong to lie, even if the person you're speaking to has no right to be told the truth. And so on.

This same assumption underlies another of Kaczor's arguments rebutting the same (desire centric) criterion for personhood.

Consider alien, angelic, or divine persons who, given their vast differences from our fragile human physiology, have nothing that corresponds to what we experience as desire. Nor is it difficult to imagine alien, angelic, or divine persons whose experiences of time are so different from our own that they do not experience past, present, and future as we do and so have no present dispositional desires for a future like ours. Even among human persons, there are those such as Buddhists who believe that the extinguishing of all desire is possible. If a human being achieved this goal, then this human being would have achieved Nirvana from a Buddhist perspective, but from Boonin's perspective would thereby no longer have a right to life, since such a human being, the Buddhist Master, would not have a desire for the future.

Kaczor seems to be relying on the reader's instinctive reaction: of course it would be wrong to kill a Buddhist master, or a desire-less, time-less angel! But the hidden assumption, once again, is that killing is wrong only because it violates the right to life. There are a myriad of reasons to think that killing such an individual would be wrong even if they don't have a right to life (such as their immense value to society). Once we recognize that, it becomes less ridiculous to suggest that they may no longer have a right to life.

The problem here is similar, though not identical, to that I identified in my first post. Kaczor leans too heavily on the "right to life." Even if we accept that such a thing can exist, it cannot and should not play all of the roles he suggests that it does.

The Costs of Abortion

(By Andrew MacKie-Mason)

John Breen has a post at Mirror of Justice discussing, in a pretty compelling way, the potential damage that abortion can do to a family. How does one explain to a child, for instance, that they had a twin brother who was aborted in the womb?

This kind of argument rings pretty strong with me. There are indeed costs to abortion, and they should be discussed more as part of a sensitive and thoughtful moral discourse surrounding abortion. But the problem is that those who oppose abortion reach too fast for the power of the state to impose their choice on everyone else. Because they tie the moral arguments with the legal proposals, these individuals cause a backlash among those who support the right to abortion. Those who are pro-choice are encouraged to counter their opponents by attacking all of their arguments, which often involves minimizing the personal and emotional harm that abortion can do.

We need to have honest conversations about all of the aspects of the abortion debate, and that means recognizing that there is more to this than pro-life/pro-choice. It's a complex issue, which allows for complex answers.

"Unlimited Power" Under The Commerce Clause

(By Andrew MacKie-Mason)

One of the themes in opposition to the Affordable Care Act, and apparently a major part of the Eleventh Circuit's opinion striking down the individual mandate (though I haven't yet read the opinion), is the proposition that if the individual mandate is constitutional, there is "no limit" to Congress' "unlimited power" under the Commerce Clause. Some opponents of the mandate restrict their argument slightly to argue that upholding the mandate would give Congress "unlimited power to impose mandates."

Both of these claims are nonsense. The latter is self-contradictory: if the power is only to impose mandates, that is an important "limit" on it. But even beyond that, the claims fail because upholding the mandate would do nothing to threaten the limits of Congressional power under the Clause that the Court has already established.

Orin Kerr, a conservative/libertarian who's broken ranks and taken the very principled position that the mandate is, indeed, constitutional under current doctrine, puts it this way:

I’m deeply sympathetic to the argument that current Commerce Clause doctrine gives the government too much power. At the same time, I think it’s worth noting that arguments in support of the mandate do reflect a limitation on the scope of federal power: the line between regulating markets in goods and services and regulating outside of markets in goods and services. The basic idea is that Congress has Article I power to regulate markets in goods and services, as markets in goods and services are commerce. In contrast, Congress does not have have a general Article I power to regulate on subjects outside of markets in goods and services, as that is not part of commerce.

Indeed, rather than some imagined line between "inactivity" and "activity" that finds no support in the Constitutional text and is really just a political invention useful for attacking the Affordable Care Act, defenders of the mandate support the natural limit on Congressional power under the clause to activities which are a part of "commerce." Congress, for instance, cannot force me to eat broccoli (even if it could force me to buy it). Congress cannot mandate that people watch a certain number of hours of television, or that they wear a certain kind of clothing. Congress has absolutely no power under the Clause for anything that doesn't affect commerce.

(Note: Arguments that evoke the scariness of Congress' "unlimited" power also ignore the most obvious limit on Congress' power: limits contained in the Bill of Rights and other places.)

State Universities and Out-of-State Students

(By Andrew MacKie-Mason)

Kenneth Anderson has a post on the Volokh Conspiracy suggesting that public universities' recent tendency to admit more out-of-state students in order to increase tuition revenues (out-of-state students pay more than in-state students) violates some duty those universities have towards the states that invested in them, and that state legislatures should crack down on this practice.

I can't really speak to the California system, which is what Anderson focuses on, but I can more specifically address my home state's University of Michigan.

UMich is a top tier research university, but it is a state university in name only. The proposed FY2012 budget has state appropriations as only about 17% of the university's total revenues. For that 17% investment, the state gets approximately 68% of the student slots at the school.

To me, that's not a bad deal. If states want their public universities to enroll more local students, they need to take up a bigger portion of the funding burden. But if states want their flagship universities to maintain their position as excellent centers of undergraduate education as well as research, the universities need to be free to find the top students wherever they can.

LawProf Paul Campos Got Some Courage

(By Andrew MacKie-Mason)

In his latest post, "LawProf" (who I wrote about here) casually dropped his coward's shield of anonymity by linking to an article that he had written. He's Paul Campos of the University of Colorado, Boulder. For those who want to evaluate Campos' assertion that he works at a "Tier One" school, Colorado is tied with two other schools for #47 in the USNWR rankings. According to this discussion, that's Tier One, though barely. As for whether he's had a "successful career," I can't say much beyond the fact that I've never heard of him before today.

Anyways, I don't intend to write much more about this whole thing, other than to note the utter immaturity of the exchange between Leiter and Campos. (See here and here for Leiter, and here for Campos.) But when two grown men start acting like children, at the end of the day I end up with more respect for the one who didn't initially hide behind a false name.

Internet Anonymity

(By Andrew MacKie-Mason)

Anonymity is never a virtue of a speaker. Sometimes it's a necessary vice, and sometimes it's a virtue of a communication medium (such as the internet) that it allows easy anonymity. But it's always more virtuous for someone to attach their name to what they say.

The choice to remain anonymous is even more shameful when it comes from people who try to gain the advantages of status without the disadvantages of revealing their identity. I'm talking, of course, about "LawProf," the alleged law professor who's attacking law schools without having the guts to sign his name to his blog posts.

"LawProf" not only tries to to get the benefit of his alleged insider status in the industry he's critiquing, he aims for an even higher reputational benefit. He self-describes himself as "a tenured mid-career faculty member at a Tier One school" who has had "a successful career in legal academia."

Of course, all of this self-aggrandizement wouldn't be necessary if "LawProf" had the guts to do what countless other bloggers have done, and signed his name to his opinions. If we had his name, we'd know what school he taught at, and could judge for ourselves whether it's "Tier One." We could look at his career and judge whether it's been "successful." But of course, signing his name would mean that the bad would come along with the good, the embarrassing along with the impressive. We can't have that, so anonymity it is.

As I said, anonymity can be necessary and thus excusable under certain circumstances. When a dissident lives under an oppressive regime, anonymity can be necessary to enable free expression without the risk of imprisonment or death. When a whistleblower works for a powerful company, anonymity can be necessary to bring harmful practices to light without the risk of reprisal. But when the person in question is a tenured law professor, anonymity serves only to protect a coward from the consequences of his actions. (That's assuming, of course, that "LawProf" is who he says he is, an assumption I have no real reason to make besides my natural instinct to trust people.)

I've considered writing this post many times throughout the years. The problem isn't isolated to "LawProf," though he is a particularly egregious example. There are also police officers (here and here) who blog about official activity, including occasional official misconduct, behind the coward's shield, and commenters on countless blogs hide the same way, often with half-baked excuses about fear of 'harassment' if they sign their name to their uninformed and baseless opinions.

What finally drove me to it, though, was "LawProf's" poor attempt to defend anonymity on his own blog.

Anonymity isn't my style (this blog is the first anonymous thing I've ever published , and I've published a lot), but I thought I would give it in a try in this context, for at least a little while, as a kind of stylistic experiment. Anyone who does genuinely critical work soon learns that the classic knee-jerk response on the part of those who don't like the criticism is to attack the messenger rather than the message. So I thought it be worth authoring this blog more or less anonymously, at least for awhile, to try to keep the focus on the substantive criticisms. I also didn't want to give the impression that these criticisms are directed at my law school in particular: they most certainly aren't. I'm talking about systemic and structural failures, rather than those of particular institutions (let alone particular individuals).

"LawProf" may be correct that an anonymous author tends to make it more difficult to attack the messenger. But that small benefit is severely outweighed by the overwhelming negative effects of anonymity. Any criticisms he make are weak and suspect: if their author isn't willing to sign his name to them, why should anyone believe him? And while there's a small problem when listeners focus on the person making the criticism, there's a much more significant problem when the speaker has no reputational motivation to keep his criticisms reasonable, accurate, and fair.

So, "LawProf," if you ever break out of your anonymous mask, I hope you'll graciously accept whatever harm your writing does to your reputation rather than whining that you're being unfairly attacked. And I hope you realize the full cowardice of your choice.

Advice for 1Ls

(By Andrew MacKie-Mason)

Paul Horwitz has some interesting advice for entering law students that I thought was worth passing on. Here's a taste:

Stop Worrying About Competitive Advantage...Similarly, on class websites some students lurk rather than contribute because they're afraid of giving anyone else an answer; and some students don't talk in class if they have the right answer because they believe they'll gain a competitive edge over the competition. I've been teaching long enough to say with confidence that this is 95% illusion, and that students who think this way are actually losing an excellent opportunity to gain a competitive edge. (And to not be jerks or alienate their classmates, but that's a different story.) If you can carefully and clearly explain some legal problem, you are at least two-thirds of the way toward mastering the material and being able to put it down in an exam in a way that will make you stand out as a top-performing student. Teaching others is a great way to learn; it helps you put the material together, it helps reveal questions you didn't know you had, and it helps you learn how to communicate that material. The "edge" you lose by helping others is minimal compared to the "edge" you gain in mastering that same material by teaching it. So go ahead and cast that bread on the waters.

(Incidentally, this is also excellent advice for undergraduates.)

Is Medicare A Private Sector Program?

(By Andrew MacKie-Mason)

Rick Hills has an interesting piece on Prawfs that's worth reading on this subject: his basic thesis is that the government has so little control over Medicare costs that it's not really accurate to call it a government program (although he admits he has no expertise with health law.) I think the last line is particularly interesting, so I'll put it here with another exhortation to read the piece.

Ironically, our budgets are so bloated because our state is so weak.

The Plain, Present Meaning and Evolutionary Public Consensus

(By Andrew MacKie-Mason)

A while ago I proposed a theory of constitutional interpretation that I labeled "evolutionary public consensus." The basic idea is that laws retain their force through the years only because they are implicitly consented to by those who live under them, and thus we should interpret those laws according to their meaning to modern individuals.

Tom Bell on Agoraphilia has a post supporting a very similar idea, which he calls the "plain, present, public meaning" of the Constitution. Bell writes:

But originalism and living constitutionalism raise a different problem, given that they base constitutional meaning on historical usage (in the first instance) or Supreme Court precedents (in the second). Only specialists in constitutional law—and not even all of them—have the expertise to engage in that sort of decoding process. Did you know, for instance, that “Property” includes government entitlements in the Fourteenth Amendment but not in the Fifth? If so, I doubt you figured it out from reading the Constitution, alone.

.........

Ratification may be necessary to make a Constitutional term effective in the first place, but it is not sufficient to make an original meaning binding on subsequent generations.

I think Bell has it basically correct, though he may focus a little too much on the meaning of the words themselves as opposed to the meaning of the words in the context of the Constitution. To find out what 'religion' means in the context of the First Amendment, we shouldn't look to how people interpret the word 'religion' on its own, but how they think of it as an element of the Constitution.

However, Eugene Volokh takes a very different view of Bell's piece, and has a (rather weak, in my opinion) critique of it posted. Here are a paraphrased collection of his general complaints, though you should look at his post for the specific examples:

• Most people don't spend much time thinking about the meaning of the Constitution.

Besides the obvious elitism (most people don't spend as much time thinking about the Constitution as law professors, but the level of constitutional sophistication among Americans is quite encouraging), this exact same criticism can be leveled against public meaning originalism (the only quasi-reasonable type of originalism). Public meaning originalism relies on the myth that there was a commonly understood and accepted public meaning to the Constitution when it was enacted. It's silly, of course, to pretend that Americans then were somehow all paragons of sophisticated political thought who were well versed in law and thought deeply about the proposed Constitution. But of course that's not really necessary: those who consent without thinking haven't earned any influence over the interpretation, but that's no reason to deprive those who do consider it of their rights.

• Some phrases in the Constitution don't have a current meaning in English, or at least not one that makes sense in the context of the Constitution.

The response here is easy, and I already basically made it above: we need not look for the Constitutional text to have meaning in a void, only that it have meaning in the context of the Constitution. This approach makes public discourse, judicial precedent, and original meaning all relevant to the extent that they're in the public consciousness. If we ever do get to the point where an ordinary American looking at the text of the Constitution has no idea what it means, then it's time to replace it. But I don't think we've reached that point yet, and if we do it's evidence of the weakness of the text, not a defect of the interpretative theory.

• English speaker's understanding of the text will be either based on precedent or original meaning.

Volokh claims that even if we look to public understanding, that understanding will, in certain cases, have to be based on original meaning or precedent. That may well be true, for each individual (though I'd question the suggestion that original meaning and precedent are the only two sources of meaning.) But even if it is, evolutionary public consensus recognizes the possibility of coexistence of the theories: if people partially accept precedent and partially look to original meaning, the theory can accommodate that, whereas the two theories themselves demand unilateral dedication.

All in all, evolutionary public consensus (or the "plain, present, public meaning") is the only interpretative theory that can truly do justice to the ideal of 'consent of the governed' rather than establishing a tyranny of history or supremacy of the judiciary.

Shoddy Capitalist Platitudes

(By Andrew MacKie-Mason)

In a recent post at the Volokh Conspiracy, Ilya Somin argues that despite having lower educational achievement on average than women and having lower salaries in some groups, men are not actually in decline. Many of the points he makes are good ones, including the fact that well-being in capitalist societies is not zero-sum: women can improve without hurting (and maybe helping) men's standard of living.

However, one careless claim stuck out. This seems to be a common argument among capitalism-optimists, so I thought I'd pull it out and address it.

On balance, men actually benefit from the rise of women, just as gentiles benefited from that of the Jews. Everyone is better off when society is able to more fully benefit from developing the talents of more of its people.

The idea that 'everyone is better off' is simply false. While it's true that increased human development does raise the overall well-being of a society, it's not at all true that 'everyone' will necessarily benefit from that.

In fact, wealth consolidation is often preferred by market forces, because consolidated capital is sometimes better at propagating itself. For this reason, increased total capital may actually be accompanied by a decrease in available capital (as both an absolute and relative matter) for the worst off.

Somin may well be correct in this specific case, but the claim, as a generality, is not correct. Capitalism, from a sufficient level of abstraction, tends to increase overall capital. It does nothing to ensure that "everyone" benefits from that increase.

Incompetent Legal Commentary on Techdirt

(By Andrew MacKie-Mason)

Legal commentary is a tricky thing. There are usually legitimate differences of opinion involved (or else the case wouldn't have survived, generally), and people often have strong views about the issues. But there's little more irritating to me than legal commentary that either completely fails to engage the reasoning or deliberately lies about the law.

Mike Masnick's recent article, "Court Says Sending Too Many Emails To Someone Is Computer Hacking," is a good example. In part:

Okay, the courts are just getting out of hand when it comes to the Computer Fraud and Abuse Act (CFAA), which is supposed to be used against cases of malicious hacking. Most people would naturally assume that this meant situations in which someone specifically broke into a protected computing system and either copied stuff or destroyed stuff. And yet, because of terrible drafting, the law is broad and vague and courts are regularly stretching what the CFAA covers in dangerous ways.

The latest example, found via Michael Scott is that the Sixth Circuit appeals court has overturned a district court ruling, and is now saying that a labor union can be sued for violating the CFAA because it asked members to email and call an employer many times, in an effort to protest certain actions. Now some of the volume may have hurt the business, but does it reach the level of hacking?

I can't say whether Masnick is deliberately lying to his readers, or if he just can't read the opinion and the statute. But the word that his whole post revolves around, 'hacking,' seems to come purely from his imagination.

The law in question is called the "Computer Fraud and Abuse Act," and there can certainly be fraud and abuse of computers without 'hacking.' And the actual legal claim made was that there was either a 'transmission' or an 'access' violation (see page 6 of the opinion, available in Masnick's post.)

The transmission violation is defined in 18 U.S.C § 1030(a)(5)(A):

Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer shall be punished as provided in subsection (c) of this section.

The access violation is defined in 18 U.S.C § 1030(a)(5)(B):

Whoever intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage shall be punished as provided in subsection (c) of this section.

Whether either of these standards has been met in the case is a fair question, and there could be a legitimate discussion of that. There can also be a good argument over whether the CFAA is a good law, or whether it's incredibly over broad. But those discussions won't ever happen so long as people like Masnick keep pulling legal standards out of thin air. 'Hacking' has nothing to do with it, and there's no good reason to pretend it does.

Governor Perry's Transcript

(By Andrew MacKie-Mason)

The Huffington Post recently got a hold of Texas Governor Rick Perry's college transcript from his days at Texas A&M. It's not a very pretty sight. In his four years, Perry scored two A's, in "World Military Systems" (the first semester; in the spring he got a C) and "Improv. of Learning." During his first year he seems to have scored a 1.33 on a 3 point scale, and during the rest of his career he made a 2.17 on a 4 point scale.

I'm not one to say that a college transcript is proof of intelligence. Certainly, people who perform poorly in college could end up being successful — and even good — political leaders. I'm certainly not going to endorse Brian Leiter's elitist suggestion that the transcript proves Perry is "dumb."

But Perry's poor performance at Texas A&M is interesting because Perry is one of the anti-intellectual conservatives pushing damaging "reforms" on public higher education.

There's a natural human instinct to value the things we're good at, and devalue the things we aren't. I'm sure psychologists have a name for this kind of bias, but it's a clearly present part of how we operate. The math professor is going to value math much more highly than physical fitness, while the football coach will be the other way around.

Perry's college record gives us an explanation for why he might undervalue a true liberal arts education: it's just not something he thrived at. And understanding the root causes of our opponent's positions is important to changing their minds.

Of course, those of us who succeed in academia should also ask ourselves if we aren't suffering similar biases. Are strong college transcripts as damaging to a defender of higher education as weak transcripts are to a critic?

The Ministerial Exception, Redux

(By Andrew MacKie-Mason)

A while ago I promised a post on why I think the ministerial exception is bad law. I've started to write that post a few times, but I've found there's just too much to say about it to make blogging the appropriate forum.

Instead, I'll link to this recent post at Concurring Opinions that I think makes the important points, though it doesn't completely address all of the arguments in favor of the exception. I'll be happy to engage with anyone who disagrees with me in the comments.

Affordable Care Act Litigation

(By Andrew MacKie-Mason)

Gerald Magliocca at Concurring Opinions has a post pointing out the relatively obvious but overlooked fact about the litigation surrounding the Affordable Care Act. Assuming the Supreme Court does not give into its desire to control an important political dispute, they will almost certainly avoid accepting any cases on the issue until a circuit split develops. Since the only circuit to consider the issue so far has upheld the mandate, any potential writ of certiorari is probably a long ways off.

Tea Party Terrorism in the Debt Ceiling Debate

(By Andrew MacKie-Mason)

Eugene Volokh suggests that it's wrong to label the "peaceful politics" of the debt ceiling debate as "terrorism" by those threatening to push the country into default to get their way. I've used the term a few times, so I thought I'd explicitly lay out my rationale here.

To be clear, I'm operating from the premise that default would have caused a severe economic crisis, especially if it lasted for any length of time. That's a separate debate, the result of which I'll assume here.

In light of that, threatening to default is not "peaceful politics," not is it good-faith negotiation. Instead, it is using the threat of mutual destruction to achieve one-sided goals. Default would have been good for nobody. It was not actually a policy goal of any but a few crazy people. Instead, it was a result that everyone was trying to avoid. In a situation like that, you would normally see an argument between ways to prevent default, with battling priorities. The debates would have been between tax increases and spending cuts, cuts to the military and cuts to Medicare, etc. Instead, even though they didn't want a default, the Republicans — especially the Tea Partiers, and excluding some reasonable conservatives — were able to convince the Democrats that they were willing to default absent unconditional surrender.

In that way, they were behaving like terrorists. Terrorists generally do not want to kill anyone. (Take the Norway shooter/bomber's statements, for example.) However, their bargaining strategy is to convince civilized people that they are willing to commit atrocities absent getting their way. It turns, say, the Israeli-Palestinian conflict into "give us what we want or we will kill you" rather than "how can we each get part of what we want." It turns the US's Middle East conflicts into "unless you cease interfering in our culture we will kill you" rather than "how can we balance your national security interests with our desire to live apart from your culture's influence?" And it turned the debt ceiling debate into "how can we balance our priorities to keep the government functioning" (the usual budget debate) into "give us what we want, or the country is going down."

Balanced Budget Amendment

(By Andrew MacKie-Mason)

One of the more ridiculous things that the Tea Party Republicans pushed for during their debt ceiling attack was a vote on a proposed Balanced Budget Amendment. They managed to get a requirement for a vote into the final debt bill, though it's a silly clause: it requires a vote only on a joint resolution with a certain title, rather than saying anything about the substance.

Given that this may become a bit of an issue, I thought I'd lay out the problems with both a genuine "balanced budget amendment" and with what seems to be the current top proposal flying under that name.

A genuine balanced budget amendment is a simple thing, really: it would require that revenues at least equal expenditures, so that the government never runs a deficit.

The problems with this kind of proposal are obvious. As any individual not fortunate enough to start with vast resources can tell you, taking on debt is often necessary to succeed. Businesses survive because of their ability to take on debt; hell, capitalism itself cannot exist without the profitable lending of capital: i.e. loans and debt. And even though some people will lie and tell you otherwise, only the most fortunate and wealthy individuals can go their entire lives without carrying any debt year-to-year.

To take a few extreme examples, a genuine balanced budget amendment would prevent the government from taking on temporary debt to pay for a war critical to national security. It would prevent the government from taking on debt to support the country in a time of severe drought and famine. It would prevent the government from taking on debt to keep essential infrastructure (postal surface, interstates, etc) working during a severe economic downturn, which would do severe damage to many businesses and likely prolong the depression.

Of course, the flexibility that debt allows is essential in more ordinary situations too. Many states have such amendments, but they work largely because those states are not independent entities; they have the federal government to take on debt on their behalf and bail them out. The federal government has no such safety net.

Of course, those who actually propose a balanced budget amendment recognize these obvious deficiencies of the idea, so their proposal isn't really a balanced budget amendment at all. Instead, it allows Congress to simply ignore it in times of "military conflict which causes an imminent and serious military threat to national security." In other words, its supporters recognize that emergencies will require borrowing, but for some reason only recognize military emergencies. (The cynic in me would suggest that the supporters are simply prioritizing their favorite kind of spending over all others. No other part of me can summon a strong enough argument to counter the cynic.)

The proposal also inexplicably includes a clause that actually makes it harder to balance the budget: it requires that bills increasing revenue be approved by 2/3 of each house of Congress rather than a simple majority. The motivation is obvious: the balanced budget amendment is supported by people who want the government to be small. But this clause demonstrates the deceptiveness of the label. The proposal isn't really a "balanced budget" amendment, it's a spending cut amendment. A true "balanced budget" amendment would make it hard to decrease revenues and increase expenditures. Anything that does otherwise is flying false colors.

Finally, the amendment would allow the Congress to pass an unbalanced budget, but only with 2/3 support. In combination with our ridiculously broken Senate system, this would mean that a mere 7.5% of the US population has enough representation to prevent us from taking on necessary debt.

Everyone recognizes that a genuine balanced budget amendment would be a horrible idea. But even the proposed "balanced budget" amendment is a typical failure of constitutional design: it attempts to address a current problem with a severe structural reform, without considering the possible severe effects of that reform in different circumstances. Our Constitution is rarely amended, so when we do amend it we must be sure to do so in a way that plans for the future rather than just addressing the present.

Debt Ceiling Bill

(By Andrew MacKie-Mason)

Lots of news organizations either don't know how to include links on their website, or don't think their readers deserve to read the text of the debt ceiling bill. I disagree, so here it is, and here's the rest of the THOMAS information.